71 Iowa 193 | Iowa | 1887
The city counsel of plaintiff passed an ordinance granting to defendant the exclusive privilege of constructing in the streets and alleys of the city the necessary tracks for a street railway. The privilege granted extended to all the streets and alleys of the city, and was to continue for thirty years. Defendant accepted the grant, and proceeded to construct and operate its railway in a number of streets. It afterwards commenced the work of constructing a track in Jefferson street, when the council passed an ordi-'
The grounds upon which the motion was denied were set out in the decision. The court held that, as the grant had been accepted by defendant, and partially performed, it constituted a contract between the parties, the terms of which could not be impaired or changed by the subsequent action
Counsel for the city did not claim in this court that the city could repeal the grant after it had been accepted and performed in part by defendant, if its original action in making it was valid. In our consideration of tlie case, we will assume that tlie grant, if the city had power to make it, constituted, after the acceptance, a contract between the parties, tlie obligation of which could not be impaired by the action of one of them.
Counsel contended, however, that the grant was invalid for the reason that the city had no power to give to defendant an exclusive privilege to use the street. But, if these premises were conceded, it would follow only that tlie city, notwithstanding the grant to defendant, might lawfully confer the same privileges upon others, and not that the grant of the privilege to it did not confer upon it the right to use the street for the purpose intended.
Coming, then, to the ground upon which the court placed its ruling, we deem it unnecessary to enter upon any discussion of the question whether an injunction should be granted against - a mere threatened nuisance; for the record discloses a state of facts which, to our minds, afford a very conclusive reason why plaintiff ought not to be permitted to maintain tlie action. The ordinance making tlie grant was attached as an exhibit to tlie pleadings, and is set out in the abstract. It is simply a grant of the privilege to construct and maintain a street railway in the streets and alleys of tlie city. It provides that the track of tlie railway shall be made to conform to the established grade of the streets, and that it shall be planked at the crossings. There are no provisions as to
Reversed.